Two days ago in a post called “Gun Control”, I wrote about some considerations on the question of gun control.
I cut one consideration out of that earlier post because it was large enough and important enough to be given a separate and more thorough examination.
Note the language that the founding fathers used in writing the Second Amendment.
The right of the people to keep and bear arms shall not be infringed.
The founding fathers believed, and founded the Constitution on a belief, that rights existed independent of government. Governments have no power to create or destroy rights, according to this theory. They only have the power to secure or to infringe or violate rights.
So, according to the Second Amendment, there exists a natural right to keep and bear arms. This right is not “invented.” It is not some arbitrary rule picked out of a hat. It is a principle borne from reason that is true even in a state of nature where no government exists. If a government decides to prevent people from keeping or bearing arms, then the right to keep and bear arms does not cease to exist. It is still there. Instead, this right is being violated by government action.
This is the philosophy upon which the Constitution is built.
We see this theory that rights exist independent of government action and governments might respect or violate those rights in a number of places in the Constitution.
Congress shall make no law . . . abridging . . . the right of the people peaceably to assemble and to petition the government for redress of grievances.
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . .
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial . . .
. . . the right of trial by jury shall be preserved. . .
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
Of course, this theory finds its strongest statement in the Declaration of Independence. There, the founding fathers wrote that certain rights such as those to life, liberty, and the pursuit of happiness are inalienable, that the purpose of government is to secure these rights, and that whenever any form of government shall become destructive of these ends it is the right of the people to alter or to abolish it.
Clearly, they did not feel that the existence of their rights as Englishmen were dependent on whether the government in England granted them rights. If they held to such a philosophy, the would have had no grounds for objecting to anything the English government might impose.
If there exists a right to keep and bear arms that exists independent of government, and governments may not violate those rights, then we can determine the limits of government by determining the scope of these rights. If there is no right to keep and bear an atomic weapon, then no government can infringe upon a citizen’s right to keep and bear an atomic weapon. Thus, no law limiting the private ownership of atomic weapons would be in violation of a right to keep and bear arms.
There are some who argue that no rights exist. If this is true, then no government law could ever infringe upon a right of the people peacefully to assemble, or violate a right to be secure in one’s persons, houses, papers, and effects, or violate a citizen’s right to a trial by jury.
This could not be argued that governments may do whatever they please. There may be other ways in which a government’s actions may be wrong other than through the violation of rights. However, it does follow axiomatically that if no rights exist, then no government action can violate a person’s rights.
Do Rights Exist?
This discussion leads us to the question, “Do rights exist?”
Rights do not exist in the form of intrinsic values. Intrinsic values do not exist. If rights are intrinsic values, then rights do not exist.
However, the proposition, “If rights are intrinsic values, then they do not exist” does not imply, “Rights do not exist.” We are still free to examine whether rights exist as something other than intrinsic values.
Typically, utilitarianism and rights theories are seen as mutually exclusive, competing views of right and wrong. Typical act utilitarianism holds that an action is to be judged right or wrong because of its consequences. Rights theory holds that actions are intrinsically right or wrong independent of their consequences. Act utilitarianism gets into trouble when people argue, for example, that it would be permissible to torture somebody to death if enough people got pleasure from watching the torture. Rights theory gets into trouble when it suggests that a right may not be violated even if the violation would prevent every creature on the planet from enduring perpetual, excruciating pain.
I hold that desire utilitarianism gives us a concept of rights that does not depend on intrinsic values, is consistent with the view that an action is right or wrong independent of the act’s consequences, but still leaves room for considering extreme consequences.
The desire utilitarian concept of a ‘right’ says, “People have a right to X” means “A general population-wide aversion to depriving people of X will tend to fulfill other desires.” That is to say, “People have a right to live” means, “A population-wide aversion to taking another person’s life will tend to fulfill other desires.”
Note: I am not talking about whether an act of taking a life will fulfill or thwart desires. I am talking about whether an aversion to taking life will tend to fulfill or thwart (other) desires.
If a person has an aversion to taking the life of another, then that person will be reluctant to act to take the life of another even when that act would fulfill other desires. The stronger the aversion to taking a life, the less likely it is that a person will take a life even when taking a life will fulfill other desires.
A person with an aversion to pain will avoid pain even then the pain would fulfill other desires. A person with a love for his children’s well being will secure his children’s well being even when doing so will thwart other desires.
However, if we pile enough other desires up against this aversion, then they will eventually outweigh that aversion. This person will (reluctantly) kill. So, if we put the taking of an innocent life up against the detonation of an atomic weapon in a distant city, the person with an aversion to killing will find that aversion overridden with concern for the millions of people who would otherwise die. Thus, rights have weight against other considerations.
The Right to Keep and Bear Arms
On this analysis, a “right to keep and bear arms” exists to the degree that “a population-wide aversion to depriving others of their weapons” will tend to fulfill other desires.
Think of how a population-wide aversion to killing, rape, theft, torture, and other evils will tend to fulfill other desires. Then, we need to ask ourselves whether a population-wide aversion to depriving others of their weapons fits into that category.
Now, a general population-wide aversion to depriving others of their freedom clearly fits as a desire that would tend to fulfill other desires. Yet, this desire can clearly be overridden, as it is with laws against murder, rape, theft, and torture (in civilized countries). This population-wide aversion to depriving others of freedom implies an aversion to depriving people of their weapons. However, this, like others, can be overridden by such things as a population-wide aversion to being murdered, or having one’s family, children, friends, or neighbors murdered, or having them suffer the effects of somebody close to them being murdered.
To the degree that there is no value to an aversion to depriving people of their weapons, to that degree there is no right to keep and bear arms. To the degree that there is no right to keep and bear arms, to that degree no government law can infringe upon such a right.
This, then, is the way a desire utilitarian would weigh an important set of considerations relevant to the issue of gun control.